Attorney General Charles
M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy
Attorney General Salley W. Elliott and Assistant Attorney General G.
Robert DeLoach, III, all of Columbia; and Solicitor Randolph Murdaugh,
of Hampton, for respondent.

________

PER CURIAM: Clyde Elliott
appeals his conviction for assault and battery of a high and aggravated nature
(ABHAN). We vacate.

FACTS

On June 23, 1997, a Colleton County
grand jury indicted Clyde Elliott on one count of assault with intent to commit
criminal sexual conduct (CSC) in the first degree.(1)
At trial, the indictment was amended to assault with intent to commit CSC in
the third degree. In addition to an appropriate instruction on assault with
intent to commit CSC third, however, the trial court instructed the jury on
ABHAN as a lesser included offense. Elliott did not object to the court's charge.
The jury subsequently convicted Elliott of ABHAN, and the trial court sentenced
him to seven years imprisonment, suspended on service of four and two years
probation. Elliot now appeals.

DISCUSSION

Elliott argues the trial court lacked
subject matter jurisdiction to convict and sentence him for ABHAN, because ABHAN
is not a lesser included offense of assault with intent to commit CSC third.
We agree.

In order for the trial court to have
jurisdiction to convict Elliot for ABHAN when he was indicted for assault with
intent to commit CSC third, ABHAN would have to be a lesser included offense
of assault with intent to commit CSC third. Murdock v. State, 308 S.C.
143, 144, 417 S.E.2d 543, 544 (1992) (circuit court does not have subject matter
jurisdiction to convict a defendant "unless there has been an indictment, a
waiver of indictment, or unless the charge is a lesser included offense of the
crime charged in the indictment"). ABHAN can be a lesser included offense of
assault with intent to commit CSC third only if assault with intent to commit
CSC third contains all the elements of ABHAN. Carter v. State, 329 S.C.
355, 362, 495 S.E.2d 773, 777 (1998) ("The test for determining when a crime
is a lesser included offense is whether the greater of the two offenses includes
all the elements of the lesser offense.").

One element of ABHAN is a battery.
State v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct. App. 1996)
(holding ABHAN includes an element of "a completed act of violence" or "touching
of the victim"). Battery, however, is not an element of assault with intent
to commit CSC third. State v. Morris, 289 S.C. 294, 295 n.1, 345 S.E.2d
477, 477 n.1 (1986) ("'Assault with intent to commit criminal sexual conduct
. . . shall be punishable as if the criminal sexual conduct was committed.'
Battery is thus not a necessary element of this offense . . . .").(2)
Consequently, ABHAN cannot be a lesser included offense of assault with intent
to commit CSC third, and the circuit court was without jurisdiction to convict
Elliot of ABHAN.

2. In State
v. Morris, the South Carolina Supreme Court stated in dicta that ABHAN "was
properly submitted to the jury as a lesser included offense under" an indictment
for assault with intent to commit CSC first. Morris at 295 n.1, 345 S.E.2d
at 477 n.1. The indictment in State v. Morris , however, alleged "assault
and battery . . . with intent to commit a sexual battery." Compare
Record on Appeal at 77, Morris, (No. 22561) withMorris
at 295 n.1, 345 S.E.2d at 477 n.1. Here there is no allegation of a battery
in the indictment.